the costs of striking

During the recent case of Cooper & Others v Isle of Wight College, the High Court considered what amount an employer is entitled to deduct from a worker’s wages when that worker goes on strike. The case concerned 3 employees of the College who went on a 1 day strike.

The Case of Miles v Wakefield MDC in 1987 established that the employer is entitled to make some deduction in relation to striking employees, what was now in dispute was what the amount of the deduction would be as case law since 1987 has been somewhat ambiguous on this point. When it came to making the deduction from the employees wages, the employer deducted the actual cost to the business of the employee’s absence, calculated on the same basis as a pro rata holiday entitlement. The High Court held that it could not do so, and instead the amount to be deducted should only be the amount that an employee could recover in an unlawful deductions claim.

This amount was calculated by subtracting 104 weekends and non-working days in the year from 365 and discounting the extra day to give a total of 260 working days in the year (based on a 5-day week). The employer had argued that the employee’s holiday entitlement should also be deducted from this figure, arguing that the value of the employee’s services should only extend to the days which he was actually at work, however this argument was rejected by the High Court which stated that these were days during which the employee’s normal wages were paid. The amount to be deducted was therefore 1/260th of annual salary.

How this affects your business

Although the sums in dispute in this case were £10.61, £6.67 and £7.74 respectively for the 3 employees the fact that their trade union backed them all the way to the High Court shows the importance of this point in principle and the extended financial repercussions that could result from longer strikes involving a larger number of employees.

It is important that, when looking at deducting wages from any workers going on strike, the employer limits the deduction to the length of the strike as a proportion of the number of working days in the year, including the employee’s holiday entitlement but not extending to cover public holidays and weekends if these are non-working days. In cases where a normal working week for a worker consists of 6 or 7 days, or where they are required to work on public holidays, the deduction from the 365 days of the year should be amended accordingly. Please note that the fact that an employer can require an employee to work on public holidays and/or weekends is irrelevant where the worker’s normal working week is only 5 days.